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12/03/75 PEOPLE v. NELSON

December 3, 1975

PEOPLE
v.
NELSON



Appeal from Recorder's Court of Detroit, Robert L. Evans, J.

Danhof, P. J., and McGregor and N. J. Kaufman, JJ.

SYLLABUS BY THE COURT

1. -- Nolle Prosequi -- District and Prosecuting Attorneys -- Common Law -- Statutes.

The nolle prosequi statute was not meant to significantly impair the common-law rule that only a prosecutor could exercise the power to enter a nolle prosequi; rather, the statute was enacted primarily to protect defendants by not allowing prosecutors to exercise this power unless the reasons therefor were stated on the record and leave of the court was obtained and recorded (MCLA 767.29; MSA 28.969).

2. -- Nolle Prosequi -- District and Prosecuting Attorneys -- Statutes.

The nolle prosequi statute does not give a trial court the authority to sua sponte enter a nolle prosequi without the prosecutor's consent (MCLA 767.29; MSA 28.969).

3. -- Nolle Prosequi -- District and Prosecuting Attorneys -- Courts.

There may be situations in which the public interest and the proper administration of Justice would require a trial court to enter a nolle prosequi on its own initiative, but a trial court may enter a nolle prosequi on its own initiative and without the consent of the prosecutor only where it finds that either the prosecuting attorney or the examining magistrate has abused his discretion.

4. -- Dismissal and Non-suit -- District and Prosecuting Attorneys -- Abuse of Discretion.

A trial court did not have the authority sua sponte to enter a dismissal where it did not make any finding whatever that the prosecutor abused his discretion in originally charging the defendant or in later authorizing acceptance of defendant's plea of guilty of a lesser offense or find that the magistrate had abused his discretion in binding the defendant over for trial on the original charges.

5. Courts -- Prosecutorial Function -- Constitutional Law.

A trial court in exercising control over a prosecutorial function violates the constitutional separation of powers.

The opinion of the court was delivered by: Mcgregor

Ronald L. Nelson was charged with receiving and concealing stolen property with a value over $100 and larceny from a motor vehicle. Case dismissed. The people's motion to reinstate the cause and set aside the ...


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